If you add up all the people with pending asylum cases at the Asylum Offices, Immigration Courts, and Board of Immigration Appeals, there are over one million souls waiting in limbo. Many will be waiting for years. During that time, some applicants will inevitably become eligible to obtain legal status in the U.S. through other means. Here, I want to discuss the possibilities for a green card for those with a pending asylum case.

We'll start with the easiest and most common path to a Green Card for asylum seekers already in the country: Marriage to a United States citizen. In a future post, I will cover other ways asylum seekers might obtain residency in the U.S., such as marriage to a lawful permanent resident, sponsorship by an employer, and the Visa Lottery.

There are plenty of good-looking U.S. citizens just waiting to marry you!

As a preliminary matter, I should say that the rules discussed here apply not only to spouses of U.S. citizens, but also to other "immediate relatives" of U.S. citizens. Immediate relatives are (1) spouses, (2) unmarried children of U.S. citizens where the child is under 21 years old, and (3) parents of U.S. citizens where the U.S. citizen child is over 21 years old.

Second, I should note that under U.S. immigration law, same-sex marriage is allowed, and such couples are treated the same as heterosexual couples for purposes of immigration.

With that out of the way, let's talk about obtaining a Green Card by marrying a U.S. citizen. Not everyone who marries a citizen is eligible to obtain a Green Card, but most people are. If you entered the country lawfully (usually with a visa), you have not been ordered deported, and you have no serious criminal issues, you are most likely eligible to adjust status (i.e., obtain your Green Card without leaving the U.S.) based on the marriage. Check with a lawyer to be sure you are eligible, as there is no sense starting the processing (and paying a lot of money), if you are not legally able to get your Green Card.
Cases at the Asylum Office: The process of applying for a Green Card varies depending on whether you have a case pending with the Asylum Office or the Immigration Court. Normally, for Asylum Office cases, we file the I-130 (petition for alien relative), the I-485 (application for a Green Card), and accompanying forms and evidence with USCIS. This includes filing for a work permit and Advance Parole, which will allow you to work and travel while the Green Card application is pending (when you pay for the I-485, the fee includes these applications as well).

If you are lucky, USCIS will process the case normally and you will get a Green Card. If the marriage is less than two years old, you will receive a Conditional Permanent Resident card that is valid for two years. Prior to the card’s expiration, you will need to file another form to obtain the lawful permanent resident card. If the marriage is more than two years old, you should receive the lawful permanent resident card, which is valid for 10 years. Once you have the temporary or permanent Green Card, you can inform the Asylum Office and close your case.

Some Green Card applicants are not so lucky, and their cases get delayed. If that happens, we contact the Asylum Office and tell them about the pending Green Card. In some mysterious way, they sometimes help move things along (it may be that the Asylum Office has a file that USCIS needs to adjudicate the marriage case). If that doesn’t work, we can try withdrawing the asylum case to pursue only the Green Card case, but at least in my opinion, it is preferable to keep the asylum case alive until you have the Green Card in hand.
Cases in Immigration Court: The process is different for people in Court (or before the BIA). For one thing, you don’t normally file the I-130 and the I-485 together. Instead, the U.S. citizen spouse files the I-130 petition alone. The purpose of this form is to get USCIS to “approve” the bona fides of the marriage (in other words, to agree that the marriage is true).

In contrast to I-130 cases where the alien is not in Immigration Court, the burden of proof is higher, meaning you need to submit stronger evidence that the marriage is real. Technically, you are asking for a bona fide marriage exemption (USCIS suspects that people in Court may get married in order to avoid deportation, and so such cases are flagged for extra attention). In practice, while USCIS often asks for a formal declaration from the couple that the marriage is bona fide, the standard of evidence is not discernibly different than in “regular” I-130 marriage cases.

Once the I-130 is pending, we typically inform the Court and give them a copy of the I-130, the supporting evidence, and the I-130 receipt. Depending on the stage of the case, we often ask the Immigration Judge for a continuance, so that USCIS has time to process the I-130 petition. If there is a processing delay from USCIS, we sometimes contact the DHS attorney and ask whether they can help facilitate the I-130, which they usually agree to do. This can sometimes magically move things along at USCIS.

Once the I-130 is approved, we inform the Court and can then try one of two paths to get the Green Card. Either we ask the Judge to terminate proceedings so the person can “adjust status” (i.e., obtain a Green Card) with USCIS, or we ask the Immigration Judge to grant the Green Card in court. Often, the Immigration Judge will make this decision for you. But if you have a choice, you should know that there are advantages and disadvantages to each approach.

If you decide to go with USCIS, which is probably the more common choice, the first step is to get the Judge to terminate proceedings (be sure that you get an order “terminating” proceedings, not an order to “administratively close” proceedings, which keeps jurisdiction with the Judge and blocks you from obtaining a Green Card from USCIS). When we tried this in the past, the DHS attorneys and the judges were amenable to termination, as that makes life easier for them. However, in a recent case, the DHS attorney would not agree to terminate proceedings until we completed the I-485 and provided proof that we paid the fee. The problem is, the fee has to be paid in a particular way for cases in Immigration Court. We paid the fee and received the receipt. After that, the case was terminated. We then tried to use the fee receipt to “pay” for the I-485. In the past, USCIS has accepted the fee receipt in lieu of payment, but this time, they refused, and so my client had to pay the fee a second time ($1,225!). Next time I have a case like this, I will ask that proceedings be terminated without the fee receipt, which will hopefully avoid the problem of paying double fees.

Once the case is terminated, the applicant can adjust status with USCIS. It is pretty common to see delays in such cases, where the person was previously in removal proceedings. But ultimately, everyone who does this seems to end up with a Green Card, and it is easy to get a work permit and travel document (Advance Parole) while the case is pending with USCIS.

Alternatively, you can ask the Judge to schedule an Individual Hearing to approve the Green Card in court. This can be faster (depending on the Judge’s schedule), and should avoid the problem of double fees, but it is more difficult to get a work permit while you are waiting (you can try to use the I-485 fee receipt to “pay” for the EAD, but as we found out, that does not always work). Also, you cannot travel outside the U.S. until the Green Card is granted (if a person in Immigration Court leaves the U.S., he has effectively deported himself). Once the Judge approves the Green Card, you will need to make an Info Pass appointment to obtain the physical card.
Some Exceptions: Not everyone who enters the country illegally, or who has a criminal conviction or a deportation order, is ineligible to get a Green Card through marriage to a U.S. citizen. However, if you fall into one of these categories, you would want to talk to a lawyer about your eligibility.

For people who entered illegally, there is a law called INA 245(i) that allows certain people to pay a fine and obtain their Green Card despite the unlawful entry. To qualify, you would have had to be present in the U.S. since at least December 20, 2000 and have had a family member or employer file an immigrant petition or labor certification for you (or possibly a parent) prior to April 30, 2001. There are other requirements too, and so you would want to discuss the specifics of your case with a lawyer. Also, potentially you can leave the U.S. with a provisional waiver and obtain your Green Card overseas. This can also be problematic, especially for asylum seekers who cannot go to the U.S. embassy in their home country, and so you would want to check with a lawyer before trying this option.

For people with a criminal conviction, there are possible “waivers” available. A waiver is basically a form (usually with a steep fee) that asks the government to forgive your crime and allows you to obtain your Green Card. Many waivers require that you have citizen or resident relatives (parent, child or spouse) in the U.S. and that the relative(s) show that they would suffer some type of hardship if you were deported. Again, you would want to talk to a lawyer about this.

People with a deportation order, or some other type of immigration issue (such as the J-1 two-year home residency requirement) might also be eligible to adjust status. But especially for people with a deportation order, it is very important to talk to a lawyer. Part of the Green Card process involves an interview with USCIS, and there have been many recent examples of people with deportation orders being detained by ICE at their I-130 interviews. A lawyer can’t stop you from being detained, but she can evaluate the likelihood of a problem, and help you weigh that risk against the possibility of a successful outcome.

For most asylum seekers who marry a U.S. citizen, the likelihood of obtaining a Green Card is quite high. However, the process can be bureaucratically challenging. For all these reasons, if you can afford a lawyer to get you through the system, that is probably a good idea.

In a future post, I will discuss some other paths to residency for asylum seekers, Stay tuned.

My colleague Ruth Dickey recently accompanied one of our clients to an interview with the ICE Counter-Terrorism Unit, after the client was ordered to report for questioning. She writes about her experience here:

ICE has been in the news lately for its role in apprehending migrants, detaining parents, and increasing deportations. For the public, the agency has become synonymous with the current administration’s aggressive approach to enforcement. Rightly or wrongly, ICE agents are portrayed as a boogeymen, and the #AbolishICE hashtag continues to trend ever upwards.

Ruth Dickey, immigration attorney extraordinaire.

What many people do not know is that ICE has two divisions that work with the public: Enforcement and Removal Operations (“ERO”), which is responsible for most of those gut-wrenching daily headlines, and Homeland Security Investigations (“HSI”). HSI is usually seen as a “good guy” agency. Agents track down terrorists and pedophiles, counter human trafficking, and help interdict illegal drugs. They do important work that protects us from transnational criminal organizations and other bad actors. When ICE issues a press release about a success story, it’s usually for something that HSI has done. The fact is, HSI’s work is generally more brag-worthy than anything ERO is doing.

HSI, it turns out, seems a bit embarrassed to be associated with the notorious ERO. Indeed, a group of HSI Special Agents recently published an open letter to DHS Secretary Kirstjen Nielsen requesting to break off from the rest of ICE. In the letter, the agents explain that,

HSI’s investigations have been perceived as targeting undocumented aliens, instead of the transnational criminal organizations that facilitate cross border crimes impacting our communities and national security. Furthermore, the perception of HSI’s investigative independence is unnecessarily impacted by the political nature of ERO’s civil immigration enforcement.

The agents complain that cities and towns are unwilling to partner with HSI unless they hide the agency’s connection with ICE. It seems that HSI is eager to maintain the image of a law enforcement agency that helps, not hurts. Its association with ICE makes HSI less effective because localities are reluctant to work with HSI agents.

Give this background, we were surprised recently when one of our clients was contacted by HSI’s National Security Group-Counterterrorism and Criminal Exploitation Unit. Our client had come to the United States for an education program. He had been thoroughly vetted prior to arrival, and was bright and ambitious enough to merit a scholarship funded by the U.S. Department of State.

While he was in the U.S., our client was outed as a gay man and he received several death threats from back home. All this took place shortly before his student status ended, and he hired us to file for asylum. His case was filed about a week after his classes finished (meaning that he had just fallen out of status). By the time HSI contacted him, our client’s asylum application was already pending, and he had received his receipt.

Our client is law abiding, and doesn’t have so much as a speeding ticket, so it was strange that HSI would have an interest in him, much less the counterterrorism unit.

I attended our client’s HSI interview in a drab office building near the airport. I went there not knowing what to expect. The agents obtained basic biographic information and took out client’s fingerprints. Then the agents told us that they were arresting the client, releasing him, and issuing him a notice to appear in Immigration Court (an NTA). In the ensuing discussion, the agents told us:

That the Immigration Court would decide our client’s case more quickly than the Asylum Office (apparently, the agents weren’t familiar with the LIFO policy, which went into effect in January).

That sending the case to court was not a waste of resources, since the case might have been referred to court anyway (that is, the agents inappropriately speculated about the merits of the case, even though they seemed to know nothing about it).

That our client would be required to attend regular check-ins at ERO to prove he was not a flight risk (despite his strong asylum claim, which he filed voluntarily).

Our client had to surrender his passport, and the agents would not give him a receipt or a certified copy of the document. Thus, he had no evidence that his passport was in HSI’s possession (inappropriate and incredibly inconvenient, given that the passport was his only form of ID).

That I (the lawyer) should not question the agents’ actions, since their children receive death threats (you would think that these alleged threats might generate some empathy for asylum seekers, but I digress).

Technically, the agents are correct that they have the power to send our client to court since he was already out-of-status. But here, I want to focus on why this approach is inefficient and inhumane.

First, our client already had a pending affirmative asylum application with USCIS at the time of his “arrest.” Such cases are less stressful on the applicant, as they consist of a (theoretically) non-confrontational interview. Contrast this with the adversarial hearing in Immigration Court. Also, under the new LIFO system, most new affirmative asylum cases (like our client’s) will be decided much more quickly than the average asylum case in Court. Further, Asylum Office cases are cheaper for the applicant in terms of lawyer’s fees, since such cases require less attorney time than Court cases.

Second, from the government’s perspective, affirmative asylum cases are less expensive and more efficient than Immigration Court cases. For one thing, the Asylum Office is funded by USCIS user fees (meaning, when you pay a USCIS fee, some of the money goes to the cost of running our affirmative asylum system). Immigration Court cases, on the other hand, are paid for by taxpayers. Court cases also involve more people: The Immigration Judge, the court-appointed interpreter, the Court staff, the DHS attorney, and—in my client’s case—ICE agents. Asylum Office cases involve fewer people, and so are less expensive. Indeed, the raison d’etre for the Asylum Offices is to reduce the burden on Immigration Courts by resolving asylum cases before they land in proceedings.

Third, one main purpose of the Immigration Court is to deport people who have no legal right to be in the United States. This includes people convicted of crimes and people who pose a threat to national security. The more the court system is clogged with cases like our client’s, the less able it will be to deal with people who may be a danger to our country.

So here is my advice for HSI: If you don’t want to be “perceived as targeting undocumented aliens,” then maybe you should try not targeting undocumented aliens, like my client. HSI should consider efficiency and humanity before tossing affirmative asylum applicants into the Immigration Court system merely because they are out of status. If they want to do the right thing, HSI can start by revoking our client’s NTA and allowing the Asylum Office to adjudicate his case.

Being an immigration attorney at a time when immigrants are under assault means that people often ask me what they can do to help.

Frankly, I am usually at a loss about how to answer this question. There are many ways to help, depending on what you mean by “help” and where your interests and abilities lie. The problem is, there is no magic bullet to solve our current difficulties. But there are things that people can do, both on the individual level and the collective level. I will discuss a few of those ideas here.

"I would have gotten away with deporting them all if it weren't for you meddling kids."

Volunteer with a Non-Profit: There are plenty of non-profit organizations that assist refugees, asylum seekers, and immigrants, and they need plenty of help. Such organizations can be found throughout the U.S. (here is a link to a list of organizations in each state), and they provide all sorts of opportunities to volunteer: Teach English or other skills, spend time assisting organizations or individual immigrants, help with job searches, resumes or job counseling. People with specialized skills can provide specialized assistance. For example, those lucky enough to be lawyers (gag!) can take a case pro bono, or—for a less burdensome commitment—attend a group event where you assist with immigration forms. Some asylum seekers need forensic medical exams or psychological reports for their cases, and could use expert assistance. Others need mental health therapy, or assistance navigating the DMV, Social Security Office or school or university bureaucracies. Still others need help with housing or public benefits. Many people who are new to our country are lost, and someone familiar with "the system" can provide invaluable guidance.

Also, many faith-based institutions, such as churches, mosques, and synagogues, have programs to assist non-citizens. My synagogue, for example, has helped refugee families from Syria and Afghanistan to resettle in the Washington, DC area. Synagogue volunteers assist with babysitting and setting up the new apartments. Some religious institutions are involved in the sanctuary movement, offering living space to non-citizens in an effort to shield them from deportation (ICE has thus far declined to enter churches to detain people). Perhaps you could encourage your church or mosque to consider joining this movement.
Get Involved Politically: There are numerous opportunities here too, and not just at the federal level. A lot has been happening at the local and state levels (where it is often easier to have an effect). One group that supports pro-immigrant candidates is Immigrants List. A group that assists with impact litigation and public awareness is the American Immigration Council. Many local non-profits are also involved in advocacy for immigrants. You can find such groups here.

Reaching out to politicians can have an impact as well. During the Obama Administration, opponents of immigration famously mailed hundreds of bricks to Congress. This was a not-so-subtle message to “build a wall.” If the other side can advocate effectively, we can too. Congress needs to know that many Americans support our humanitarian immigration system. Unless we reach out to them, our representatives will only hear half the story. You can contacting your Senators here, and your Representatives here. You can find links to the different state legislatures here. You don't have to be a U.S. citizen to contact your representative. Anyone can do it.
Contact the Media: There are many misconceptions about asylum seekers and refugees in the news. If you see an article or program that misrepresents such people, you can contact the journalists and let them know (contact info is often available on the journalist's website). I think it is especially powerful for refugees themselves to engage in such advocacy. It’s very difficult for stereotypes to survive in the face of individual truths, and so when asylum seekers and refugees tell their stories, it can be quite influential. Also, if you ask in advance, journalists will usually agree to keep identity information confidential, so you can talk to them without fear that your personal information will be made public.
Take to the Streets: I’m of two minds about public protests. Sometimes, I think they are useless; other times, I think they are transformative. Of course, there are all sorts of protests from mass rallies to performance-art type events (and there was also our very own Refugee Ball back in January 2017). Such events can be inspiring and energizing for the people involved. They can also help coalesce disparate people into a unified group. Such events also send a message—to politicians and to the American public.
Hire an Immigrant: The government is making it easier to discriminate against non-citizens. And in any case, it’s never been easy to get a job when you’re new to America. So if you have the ability to employ someone, why not consider an immigrant?

What if the intended employee does not have work authorization? Some people--such as people with asylum--are eligible to work even without the employment authorization document (the EAD card). It is obviously not legal to employ someone who is not authorized to work, but for many asylum seekers, who often wait months for their EAD, the only way to survive is to work without permission. Such people are frequently mistreated by employers. Hiring such a person comes with a risk to the employer as well as to the employee, and as a lawyer, I can't advocate for breaking the law. However, at least in my opinion, employing such people, paying them fairly, and treating them decently is an act of resistance against an immoral system.
Talk to People Who Disagree with You: Advocates for immigrants have failed to convince the American public about the rightness of our cause, or at least we have failed to convince enough of them to win a presidential election. Rather than talking at people who disagree with us (as we often see on social media and left-leaning news outlets), we should be talking with such people. Speaking respectfully with people, listening empathetically and asking questions, and explaining a pro-immigrant view will not win everyone over to our side. But it might win over some. And even if we talk to people who disagree with us, and they are not swayed, a respectful conversation can help open doors later on. Anti-immigrant views seem to thrive in our current divisive environment. Perhaps if we work to tone things down and help move our country towards a more rational debate, it will also help immigrants. This needs to be done in big ways, but it also needs to be done in small ways, one conversation at a time. If you want to educate yourself about immigration issues, a good (pro-immigrant) source is the American Immigration Lawyers Association, which has policy statements on various issues.

So those are some ideas. Like I said, there is no magic solution for our current situation. But by supporting immigrants, in big ways and small, it is possible for each one of us to make a difference.

If you're reading this blog, and presumably you are, you probably already know about the "Asylum Clock." The basic story is this: When a person files for asylum (with the Asylum Office or the Immigration Court), the Clock starts to count time. Once the Clock reaches 180 days, the asylum applicant is eligible for an employment authorization document (“EAD”). The Clock “stops” if the asylum applicant causes a delay in her case. The problem is that the rules governing the Asylum Clock are vague, and ever changing. Today, I want to discuss a new change with the Clock, debunk a rumor that has been floating around, and briefly discuss the new EAD application form.

The official Asylum Clock, kept in a secure vault at DHS.

First, a few words about the Asylum Clock. The Clock originally went into effect in 1996. Before then, if a person filed for asylum, she could also apply for an EAD. The powers-that-be (i.e. Congress) felt that this system encouraged frivolous asylum applications--people knew that they could file for asylum, get a work permit, and remain in the U.S. for years while their cases were adjudicated, and so they had an incentive to file for asylum even if they had meritless cases.

To combat this problem (if indeed, it was a problem), Congress created a 180-day waiting period before asylum seekers would become eligible for the EAD (under the regulations, you can file for the EAD after 150 days, but you are not actually eligible to receive the EAD until 180 days have elapsed). The "Asylum Clock" counts this time. In order to avoid the problem of asylum seekers deliberately delaying their cases to obtain an EAD and draw out the process, the law states that any delay by the applicant causes the Clock to stop. It sounds simple, but in practice, it's often been a mess.

EOIR--the Executive Office for Immigration Review--has a handy memo that lists the reasons why the Clock might stop in Immigration Court or at the Asylum Office. According to the memo, the Clock will stop in Immigration Court if (1) the applicant asks for the case to be continued so he or she can get an attorney; (2) the applicant, or his or her attorney, asks for additional time to prepare the case; or (3) the applicant, or his or her attorney, declines an expedited asylum hearing date. At the Asylum Office, the Clock stops if (1) the applicant requests to transfer a case to a new asylum office or interview location, including when the transfer is based on a new address; (2) the applicant requests to reschedule an interview for a later date; (3) the applicant fails to appear at an interview or fingerprint appointment; (4) the applicant fails to provide a competent interpreter at an interview; (5) the applicant is requested to provide additional evidence after an interview (though I have never seen this used as a basis to stop the Clock); or (6) the applicant fails to appear to receive and acknowledge an asylum decision in person (if required). Other--unspecified--delays can also cause the Clock to stop in the Asylum Office or in Court.

Also, the Clock sometimes stops for random and unpredictable reasons: In court, different Immigration Judges interpret the rules differently and inconsistently, and so in some cases, one IJ would stop the Clock (or refuse to start it) in a situation where another IJ would do the opposite. Also, the Clock sometimes stops due to administrative error. Correcting these problems or re-starting the Clock is a real hassle, and some people who are eligible for EADs do not receive them.

Over the last few years, we have seen some improvements in the operation of the Asylum Clock, and it has become less common for the Clock to stop. One particular improvement at the Asylum Office was that moving the case to a new jurisdiction would not cause the Clock to stop--that way, if a person moved within 180 days of filing for asylum, she could still receive her EAD. But that policy has now been reversed, at least according to the notes I received from a recent meeting at the Arlington Asylum Office--

Please note that for the purpose of the 180-day Asylum employment authorization document (EAD) clock, a request to transfer a case to a new asylum office or interview location (including when the transfer is based on a new address) is considered a delay requested or caused by the applicant. This transfer will cause the EAD clock to stop. The 180-day Asylum EAD clock is resumed once the new asylum office transfers in the applicant’s case.

Given the new last-in, first-out policy, perhaps the change makes sense from the Asylum Office's point of view, but asylum seekers will now need to be more cautious about moving. The bottom line is this: If you move and your case is transferred to a different Asylum Office, the Clock will stop. For how long it will stop is unclear. But since the Clock is notorious for stopping easily and only re-starting with difficultly, it seems important for affirmative asylum seekers to avoid moving after they file for asylum.

Once you reach 180 days on the Clock, moving has no effect, but to be extra-safe, I am now advising my clients not to move until they actually receive the EAD card. Of course, if you move, and your case remains at the same Asylum Office, there should be no effect. You can check whether moving will cause your case to be transferred to a new office by visiting the Asylum Office Locator and entering your old and new zip codes.

Another development to discuss is the recent Attorney General memo that rescinds a number of prior memos. There have been rumors that the purpose of this memo is to prevent asylum seekers from obtaining an EAD while their cases are pending. The memo itself does not end EADs for asylum seekers, but whether this memo is a precursor to such a move, I do not know. The government seems to have the authority to end EADs for asylum seekers (the statute says, "An applicant for asylum is not entitled to employment authorization, but such authorization may be provided under regulation by the Attorney General"). But given that the new EAD application form allows for work permits for people with pending asylum cases, it seems unlikely that the government will end EADs for such people, at least in the near term.

Finally, there is a new EAD application, form I-765. I will write more on this another time, but one major change is that asylum applicants must indicate whether they have been arrested for a crime. Many asylum seekers have been arrested for political reasons, as opposed to crimes, so what should they do? The I-765 instructions state that the applicant must list all arrests and convictions, which seems broader than the question actually listed on the form itself (which refers only to arrests for crimes). At this stage, I think it is safer to be over-inclusive. For our clients, if they have been arrested for any reason, even for a political reason, we will reveal that on the form and provide information about it. If there are no records of the arrest, which there often are not, we will include an affidavit from the client about what happened. Whether this will satisfy USCIS, I do not know. But until we learn more, this is the approach we will take.

So I suppose the good news is that asylum seekers are still eligible to obtain work authorization. They do need to be careful about moving before they receive the EAD card, though. When we know more about the new EAD form, or if there are changes to the process, I will try to post an update here.

On January 29, 2018, the Asylum Division changed the way it prioritizes cases. Since 2015, asylum applicants were being interviewed in the order that their cases were filed. Oldest cases first, followed by newer cases (“first in, first out” or FIFO). During this period, the number of people waiting for an interview—the backlog—grew and grew.

Now, under the new system, cases are interviewed on a “last in, first out” basis or LIFO. This is basically the same system we had prior to 2015. The backlog began under the pre-2015 LIFO because the Asylum Offices did not have the people-power to interview everyone who applied for asylum. The result: Some cases were interviewed, while others “disappeared” into the backlog. Because this was unfair to “disappeared” applicants, the Asylum Division eventually switched to FIFO, which had the virtue of being more fair, but did nothing to ameliorate the backlog.

Most experts believe the backlog will be resolved by the late 25th century. Biddi biddi biddi.

Under the Trump Administration, what’s old is new again, and so we are back to LIFO. How is LIFO working out? Some new data from USCIS gives us an idea. The short answer, if you don’t have time to read this whole post, is that the backlog is not about to be resolved any time soon. So if you are currently stuck waiting for an asylum interview, you might want to get comfortable, as you’ll probably be waiting for a while (or you can try to expedite your case). If you have time to keep reading, let’s look at where we are, and how you can best navigate through LIFO-land.

First, as of March 31, 2018, there were 318,624 asylum applications pending in the backlog. That’s “applications” not “applicants.” Since some applications include multiple family members, the number of people stuck in the affirmative asylum backlog is probably quite a bit higher than 318,624.

In response to the backlog, the Asylum Division has taken several actions. For years now, they’ve been staffing up. According to a recent report from the USCIS Ombudsman, since FY 2016, the number of Asylum Officers has increased from 533 to 686 (and they continue to hire – if you want to sign up, check out this job posting). Since we've dramatically reduced the number of refugees coming to the U.S., Refugee Officers have more free time, and so they are being rotated through the Asylum Offices on 12-week stints. We are also expecting a new National Vetting Center (in 2019 or 2020) that will deal with security checks and fraud issues, in order to free up more time for Asylum Officers to do their work. All these changes should allow the Asylum Offices to process more cases.

We also now have LIFO. Under this system, the Asylum Offices prioritize cases as follows: First priority are rescheduled interviews, whether the interview was rescheduled by the Asylum Office or the applicant. Second priority are asylum applications that have been pending less than 21 days. This does not mean you will receive an interview within 21 days of filing. Rather, cases less than 21 days old will receive priority to be scheduled for an interview. Third priority are all other affirmative cases, including the 318,624 currently in the backlog.

According to the Ombudsman’s report, not all new cases will receive priority for an interview:

Cases subject to interviews at “circuit ride” locations (generally a USCIS field office situated closer than the asylum office to an applicant’s residence) will not fall under the 21-day time frame. Rather, the Asylum Division will schedule these cases for interviews as resources permits.

This means that if you want a quick interview, you have to live in a location that is covered by one of the main offices or a sub-office (Arlington, Boston, Chicago, Houston, Los Angeles, Miami, Newark, New York, New Orleans or San Francisco), as opposed to a “circuit ride” location, which is a USCIS field office that is visited periodically by Asylum Officers (there are many, but some examples are Atlanta, Buffalo, and Seattle). I do not know of an on-line listing of areas covered by circuit ride locations, but I suppose you can email your Asylum Office to ask. If you live in a circuit-ride area, you can ask to be interviewed in a main office--sometimes they accommodate such requests.

Assuming you file at one of the main or sub-offices, the likelihood of actually receiving an interview (as opposed to disappearing into the backlog) varies by office. The chart below is based on very preliminary data from the Asylum Division. It shows the (very approximate) likelihood of having your case interviewed in each office.

In the chart, “New Cases Filed” is the number of asylum cases filed in that particular office for March 2018. “Interviews” is the number of interviews actually conducted in March 2018 (as opposed to the number of interviews scheduled and then canceled, which is quite a bit higher). The percentage figure is the rough likelihood that an applicant in that particular office would have received an interview in March 2018. And the “Completed” column shows how many cases were completed during the month, which—when compared to the number of cases filed—gives an idea of how much the backlog grew or shrunk in that office for March 2018 (the +/- in the Completed column).

Office

New Cases Filed

Interviews

Completed

Arlington

920

494 / 54%

408 / +512

Boston

289

132 / 46%

178 / +111

Chicago

550

675 / 100%

550 / +0

Houston

751

583 / 78%

504 / +247

Los Angeles

997

708 / 71%

1,243 / -246

Miami

2,219

798 / 36%

920 / +1,299

Newark

668

792 / 100%

865 / -197

New York

802

690 / 86%

883 / -81

New Orleans

206

166 / 81%

280 / -74

San Francisco

653

529 / 81%

687 / -34

There are some caveats to this chart. First, I compare new cases filed with cases interviewed to determine the likelihood that you will receive an interview in that particular office. This is an apples/oranges comparison since we don’t know how many of the interviews were newly filed cases, as opposed to rescheduled interviews or expedites. Worse, the cases interviewed were probably filed in January or February, since it takes some time to actually schedule the interview. This makes the comparison even less reliable. Second, this data is for only one month, and March was probably not a “normal” month, in that the system was still adjusting to the change from FIFO to LIFO. So how useful this chart is for predicting the likelihood of an interview going forward, I do not know. Finally, this chart was prepared by me. Using math. Since I’m no Ramanujan, you should take all this with a big grain of salt.

That said, this is the best data we have, and maybe we can draw some tentative conclusions. For one, the backlog is generally growing, not shrinking. However, this varies by office. If your case is stuck in an office where the backlog is growing, it is unlikely that you will get an interview any time soon. If you are in an office where the backlog is shrinking, maybe you will eventually receive an interview. Also, if you are a new applicant and you want an interview quickly, you may be better off filing in Chicago or Newark, since they seem to be interviewing pending cases faster than they are receiving new cases (conversely, if you want a slower interview schedule, you are better off living in an area covered by a circuit ride location or an office where the backlog is growing). Again, all this is quite preliminary, and we will have to see how things progress when they release the next batch of data in a few months.

Another bit of information we can glean from the Ombudsman report is that local asylum offices “report a 25 percent drop in affirmative receipts in the immediate aftermath of the change to LIFO scheduling." The implication/hope is that the new LIFO system is deterring people from filing frivolous asylum claims. I think there is another, more likely explanation, however. In my office, for example, when the Asylum Division switched from FIFO to LIFO, we stopped filing cases for a few months in order to adjust how we filed (under FIFO, we filed a bare-bones application, consisting of the I-589 form and the passport; under LIFO, we file a complete case, which takes much longer to prepare). My guess is that once people adjust to LIFO, there will be little change in the number of cases being filed (of course, since fewer aliens are coming to the U.S. these days, we can expect fewer asylum applications for that reason).

One final piece of news is a pilot program to refer one-year bar cases directly to the Immigration Court without an interview. The Asylum Division has identified up to 50,000 pending cases where the applicant entered the U.S. more than 10 years before filing for asylum. Such people may have filed for asylum in order to be referred to Court, where they will seek other relief (most notably, Cancellation of Removal). So far, the Asylum Division has contacted about 1,500 such people, and given them the option to skip the interview and go directly to Court. Depending on the case, and the person's goals, this may be an attractive option for some, though I suspect anyone with a real fear of returning to the home country will prefer to have an asylum interview.

So there you have it. It is probably too soon to draw any firm conclusions from the data at hand, but based on what we know so far, it seems likely that the backlog will be with us for the long term. Keeping informed about the Asylum Office's statistics and policies may allow some applicants to increase their chance for an interview. As more data becomes available, I will try to post that information here.